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Recent developments in South African employment law

Among the much-anticipated draft pieces of legislation, published by the Department of Labour recently, was the BCEAA. The effective date for the coming into operation of the Act is still to be announced by the President, but it is anticipated that this will occur within the next few months.

The overarching purpose of the Basic Conditions of Employment Act (“the Act”) is to give effect to the right to fair labour practices. The BCEAA seeks to further entrench these rights by imposing more severe penalties for non-compliance with the provisions of the Act.

Compliance Orders

The BCEAA makes significant inroads into an employer’s rights to challenge compliance orders, thereby highlighting the importance of ensuring that the provisions of the Act are complied with in all respects and at all times.

The BCEEA aims to restructure the mechanisms used to enforce compliance with the Act. The amendment does away with ability of the employer to, among other things, object to a compliance order issued by the Department of Labour and appeal against a compliance order made by the Director General. To this end, any failure to comply with a compliance order would constitute contempt of court.

Penalties

The BCEAA seeks to impose more severe penalties for non-compliance with the provisions of the Act. In this regard, the Minister has increased the maximum terms of imprisonment to six years for specified contraventions of the Act and the maximum fines that may be imposed have similarly been increased for specified contraventions of the Act. This demonstrates the Minister’s commitment to punishing those for non-compliance.

Child labour

The BCEAA places stringent measures on employers who employ children. No children under the age of 15 may be employed and those who are 15 or older may not be employed to do dangerous or unsuitable work. Should an employer be found to have committed an offence involving child labour, the employer may now be sentenced to six years imprisonment.

Sectoral determinations

The BCEAA empowers the Minister to make sectoral determinations in respect of all employers and employees who are not covered by another sectoral determination. Theoretically, the Minister will now be able to set a general minimum wage across unregulated sectors.

Disciplinary hearing based on false allegations – damages claim?

In a first in our law, the High Court in Weitz v Goodyear SA (Pty) Ltd & Others (2014) 35 ILJ 441 (ECP) recently considered the question whether an employee who has been subjected to a disciplinary hearing, but found not guilty of the alleged offence, has a claim for damages against his employer or the individual(s) that leveled the false allegation against him.

The court found that an employer is under a duty to investigate allegations prior to instituting a disciplinary hearing. The court placed reliance upon the “Code of Good Practice: Dismissal”, contained in the Labour Relations Act 64 of 1995 (as amended) (“LRA”), which requires an employer “to conduct an investigation into the allegations prior to disciplinary proceedings being initiated.” The court held that a failure to do so would constitute a breach of a legal duty owed to employees.

Thus it is possible for an employee, in theory, to hold his employer liable for the (unfair) manner in which he was treated when being subjected to a disciplinary hearing. If the decision is correct, employers must ensure that they can show that prior to instituting the disciplinary hearing they conducted an investigation into the allegations leveled against the employee.

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